Council and Main Committees

  • Thursday 9 November 2017
  • NO. 5185
  • VOL. 148

Councill of the University

Changes to Regulations

Council has made the following changes to regulations, to come into effect on 24 November.

(a) Amendment to the composition of the Medical Research Fund Committee

Explanatory Note

The following changes, made on the recommendation of the Medical Sciences Division, amend the provisions governing the appointment of members of the Medical Research Fund Committee.

Text of Regulations

In Council Regulations 17 of 2002, concerning divisional boards, delete existing regulation 3 (3) and substitute (new text underlined, deleted text struck through):

'(3) The Medical Research Fund Committee shall comprise:

(a) the Head of the Medical Sciences Division or his or her nominee, who shall chair the committee;

(b)–(d) three persons appointed by the Nuffield Benefaction Committee;

(e)–(g) six three persons appointed by the Medical Sciences Board from among the members of the Medical Sciences DivisionFaculty of Clinical Medicine;

on condition that at least four three of the six persons appointed under (b)–(g) shall be members of the Faculty of Clinical Medicinethe holders of one of the professorships listed in Schedule C to the Regulations for Professors, and at least one of those six persons shall be a person engaged in hospital laboratory work.'

(b) Joint Subcommittee of the Education Committee with Student Members

Explanatory Note

The following changes in the regulations update the details of the student membership of JSCECSM, without altering the number of student members. The opportunity is also taken to correct a cross-reference and to bring the lengths of terms of office of co-opted members into line with those in place for other subcommittees of Education Committee. The opportunity is also taken to ensure that the gender-neutral term 'chair', rather than 'chairman', is used throughout.

Text of Regulations

In Council Regulations 15 of 2002, Part 33, concerning the Joint Subcommittee of Education Committee with Student Members, amend regulations 33.2, 33.3 and 33.8 as follows (new text underlined, deleted text struck through):

'33.1. The Joint Subcommittee with Student Members shall be a subcommittee of the Education Committee.

33.2. The Joint Subcommittee with Student Members shall consist of:

(1) a chairman (who shall be the Pro-Vice-Chancellor (Education) or a member of Education Committee appointed by the Pro-Vice-Chancellor);

(2) one of the Proctors or the Assessor as may be agreed between them;

(3)–(5) three members of Congregation appointed by Education Committee, of whom at least one shall be a member of Education Committee;

(6), (7) two members appointed by the Conference of Colleges;

(8) the President of the Oxford University Student Union;

(9) the Vice-President (Graduates) of the Oxford University Student Union;

(10) the Vice-President (Access and Academic Affairs) of the Oxford University Student Union;

(9), (10) two of the other Oxford University Student Union sabbatical trustees as may be agreed between them;

(11) one student member appointed by the Executive of the Oxford University Student Union from among their own number;

(12), (13) two student members elected by the Council of the Oxford University Student Union, of whom one shall be a student member who is a graduate.

(11)–(13) three student members appointed by the Council of the Oxford University Student Union, at least one of whom shall be a student member who is a graduate.

33.3. With the approval of the Education Committee on each occasion, the subcommittee may co-opt up to two additional senior members who shall hold office for three years one year and shall be eligible to serve for a total period of six four years.

33.4. The subcommittee shall receive on behalf of Council (through its Education Committee) all reports, budget estimates, constitutional amendments, and other business under Part A of Statute XIII and shall make recommendations to Council, save that only those members appointed under regulation 33.2 (1)–(7) and 33.3 above may vote on business under Part A of Statute XIII.

33.5. The subcommittee shall receive all proposed variations to the terms of the University's annual grant to OUSU and make recommendations to the Budget Subcommittee.

33.6. The subcommittee shall consider and advise Council through its Education Committee on any University matter which affects student members other than matters which fall within the scope of the joint committees of any of the University bodies set up under Statute VII or of the Curators of the University Libraries, or of the Rules Committee.

33.7. The subcommittee shall have power to consider matters which fall within the terms of reference of any joint committee other than those specified in regulation 33.6 above or of any committee which contains representatives of student members, but only if they have first been considered by that committee.

33.8. Parts 2.6 and 2.7 of Council Regulations 14 of 2002 Regulations 1.6 and 1.7 in Part 1 apply to this subcommittee except that the quorum is one-third plus one of those members eligible to vote upon the business of the committee (rounded to the nearest integer).'

(c) Staff Employment Review Panel and the University Appeal Panel

Explanatory Note

Council Regulations 1 of 2017 set out the arrangements for cases to be heard by the Staff Employment Review Panel (SERP) and the University Appeal Panel (UAP). A small number of amendments have been made for clarity and consistency.

i. Regulation 1: the sub-heading 'Staff Employment Review Panel' has been moved to a position immediately after Regulation 1. Regulation 1 is a general provision which applies to Council Regulations of 2017 as a whole, not only to provisions governing the SERP.

ii. Regulation 9: an amendment is made in order to bring about consistency with the terms defined in Regulation 2 (2).

iii. Regulation 19 (1): as set out in the third consultation on possible revisions to Statute XII it was proposed that appeals from the EJRA Committee would be heard by the new UAP (Supplement (1) to Gazette No 5113, 18 November 2015, p134). This is reflected in the revised Statute XII, as approved by Congregation on 31 May 2016, which restricts the role of the Appeal Court to hearing appeals against decisions of the Visitatorial Board and appeals under Part G (Removal of the Vice-Chancellor from Office).

The regulations do not explicitly reflect the new route of appeal. The amendment to regulation 19 is to ensure that persons who wish to appeal against the decisions of the EJRA Committee have a clear route to do so given that they no longer have recourse to the Appeal Court. The amendment will not change the existing position under the revised Statute XII, but it will ensure the drafting of the regulations properly reflect the statute, which has already been approved by Congregation.

iv. Regulation 19 (2): this regulation currently applies only to appeals against decisions of the SERP to recommend dismissal. It sets out how and when a notice of appeal must be served. Amendments are made to extend its application to all appeals to the UAP, setting a single route of appeal and a default timeframe for appeal. The default will serve as a minimum timeframe. In that context, the shortest timeframe currently given (14 days from receipt of the written decision) is adopted as the default.

Text of Regulations

1 In Council Regulations 1 of 2017, move the sub-heading 'Staff Employment Review Panel' to immediately before regulation 2.

2 Ibid, delete existing regulation 9 and substitute (deleted text struck through):

'9. During preparation for the hearing and the hearing itself, the member of the academic staff has the right in strict confidence to discuss the situation with and obtain advice and moral support from colleagues in the University and outside it, personal friends and family. Such communications must not impart more information, nor be made to more people, than is strictly necessary in order to obtain the necessary advice and moral support. In addition, the member of staff must not share any information that would or could prejudice the fair and proper conduct of the hearing, breach the confidentiality of others, make known information about the parties to the hearing that could be considered slanderous or libellous, or otherwise breach the member of staff's contractual or common law duties.'

3 Ibid, delete existing regulation 19 (1) and substitute (new text underlined, deleted text struck through):

'19.

(1) The appeal panel shall hear and determine:

(a) an appeal from any decision as provided for by section 52;. and

(b) appeals from decisions of the EJRA Committee.'

4 Ibid, delete existing regulation 19 (2) and substitute (new text underlined, deleted text struck through):

'(2) A notice of an appeal to the appeal panel shall be served on the Registrar within 1428 days of the date on which the written notice of the decision being appealed the written notification under section 38(a) was received by sent to the member of staff unless:

(a) the regulations and/or procedures governing the decision being appealed allow a longer period; or

(b) the Registrar considers it is in the interest of justice and fairness to allow a notice to be served outside that period.'

(d) Property Management Subcommittee

Explanatory Note

The proposed changes, made by GPC on the recommendation of the Property Management Subcommittee (PMSC) and the Planning and Resource Allocation Committee, amend the membership of the subcommittee, by replacing Oxford SU Vice-President (Graduates) with one student member representative, selected by the Council of the Oxford University Student Union from among the student member representatives on Council. This request originated from Oxford SU, which wishes to have some flexibility in deciding the most suitable sabbatical officer to sit on PMSC.

Text of Regulations

In Council Regulations 15 of 2002, amend Part 27 concerning the Property Management Subcommittee as follows (new text underlined, deleted text struck through)

'27.1. The Property Management Subcommittee of the Planning and Resource Allocation Committee shall consist of:

(1) the Pro-Vice-Chancellor (Planning and Resources), who shall chair the committee;

(2) the Registrar;

(3) the Director of Finance;

(4) one student member representative, selected by the sabbatical officers of the Oxford University Student Union from among their own numberthe Vice-President (Graduates) of the Oxford University Student Union.'

(e) Schedules to Council Regulations 3 of 2004

Explanatory Note

The following changes remove references to Schedules A, B and C in the regulations governing the Employment of University Staff. These schedules were superseded by provisions that came into effect on 29 July 2004 and which introduced particular categories of professors as described in regulation 8 (27)–(28), (29), (30) and (32). The opportunity is also taken to ensure that the gender-neutral term 'chair', rather than 'chairman', is used throughout.

Text of Regulations

1 In Council Regulations 3 of 2004, concerning the Employment of University Staff, delete references to Schedule A, B and C in the Annexe to the regulations such that it comprises a single list.

2 Ibid, delete existing regulation 6 and substitute (deleted text struck through):

'6. No member of staff (with the exception of CUF lecturers) may hold any other appointment without the express permission of the relevant head of department, chairman of faculty board, or head of division, as appropriate, subject to the provisions of Council Regulations 5 of 2004.'

3 Ibid, delete existing regulation 32 and substitute (deleted text struck through):

'Particular provisions for committee chairsmen

32. Any allowances payable in respect of the duties of committee chairsmen shall be on a scale as determined from time to time by the General Purposes Committee, subject to the approval of the Planning and Resource Allocation Committee of Council as to the financial implications of any proposed amendments. The General Purposes Committee shall, on the recommendation of the Registrar, have discretion to determine in exceptional circumstances whether a chairman should be paid an allowance for a fixed term and the scale point to be paid in each case.'

Council of the University

Nomination of an external member of Council

Under regulation 9.3 of Congregation Regulations 2 of 2002, the nomination below shall be deemed to be approved unless not later than 4pm on 16 November the Registrar has received from not fewer than 20 members of Congregation a written request for a postal ballot to be taken in respect of that nomination.

Approval of the nomination of Charles Harman as an external member of Council

The nomination by Council, under the provisions of section 4 (7)–(10) of Statute VI, of Charles Harman as an external member of Council, to fill the vacancy left by Jayne Almond, is submitted for approval. The appointment would be from Michaelmas term 2017 until Hilary term 2020 in the first instance.

Notes on the nominated external member of Council

Charles Harman has over 30 years' experience in a variety of commercial and banking roles. He graduated in Philosophy, Politics and Economics (Magdalen, 1984) and joined Credit Suisse First Boston as a graduate recruit, where he was appointed as Managing Director in 1993. Following this he worked in other investment banking roles, particularly focusing on emerging markets.

He joined Cazenove in 2001 as Managing Director, advising a range of FTSE 100 companies, and, following the acquisition of the firm by JP Morgan, was made Head of UK Investment Banking at JP Morgan. In 2011 he was appointed Chief Executive Officer of BXR Partners, an emerging markets investment group, where he was responsible for successfully realigning the firm's investment business across several new sectors and geographical regions, including Africa and South America.

In 2015 he returned to JP Morgan as Vice-Chairman and has responsibility for some of the firm's largest clients from the UK and South Africa.

Charles is also a business ambassador and Chair of the London Leadership Team of United Purpose, an international development charity, and Chair of Peters, Fraser & Dunlop, a UK-based literary agency and publisher.

Congregation31 October

Question and Reply: Report of Proceedings

At the meeting of Congregation on 31 October, the question and reply, first published in the Gazette of 19 October, were taken as read. Seven supplementary questions were asked, as set out below.

Question

'Given that the only two final decisions so far in the University's Appeal Court on EJRA Appeals were published by the Council on 23 June and then in the online Gazette of 29 June, though only in redacted form, with both upholding the appeal and both criticising extremely strongly the unfairness of the conduct of the EJRA process, what steps will Council take to present to Congregation a full Report setting out its proposals to meet the following concerns arising:

a) In the statement accompanying the "release of decisions by Dame Janet Smith and Sir Mark Waller in the University's internal Appeal Court" it is asserted that "anyone who applies to remain in post beyond the retirement age, and is turned down", may appeal. Will Council confirm what avenue of appeal will be available to these appellants under the revised Statute XII.

b) The statement asserts that apart from these successful appeals "other appeals, whose details have not been released, have been rejected or resolved in accordance with the University's procedures". Will Council publish numbers of any EJRA appeals which have actually been rejected on the merits by the Appeal Court and numbers of appeals which have been resolved outside the University's appeal procedures by negotiation or executive action or in some other extra-procedural way?

c) The statement asserts that the changes of September 2015 were "brought in to take account of Dame Janet Smith's recommendations" and that "EJRA application procedures are changed in line with Dame Janet Smith's recommendations. Procedures which are criticised in her ruling of 2014 are no longer in use from 1 October 2015". Will Council list the exact respects in which the changes made to the procedure in September 2015 were specific, identifiable and comprehensive responses to the Galligan judgement by Dame Janet?

d) The statement promises that the University "will consider any comments the Judges have made when deciding on its future policy in this area". Will Council explain the mechanism to be provided to ensure that the University is able to do this given that Congregation voted to amend Statute XIV, 15 so that in future changes to the EJRA procedure will be framed by the Personnel Committee and approved by Council so will not be Regulations to be published in the Gazette and among the University's Statutes and Regulations but merely "procedures".

e) Will Council explain the basis of its claim that "participants in the appeal process enter into it with the expectation that it will be confidential" when the Regulations for the Appeal Court state only that hearings shall normally be "private" but may be public; and make no provision that Decisions of the Appeal Court shall be considered as "confidential", merely under Statute XII, 57, that they shall be "sent" to the Vice-Chancellor and the parties to the appeal.

f) Will Council explain the statement that the Appeal Court "is asked to consider the merits of those particular cases and not broad legal issues" when this does not appear to be stated in the Statutes and Regulations.

g) Will Council offer Congregation a full list of lessons to be learned from the extensive criticisms of the conduct of the EJRA process in the two partially published judgements so as to reassure affected employees that they may expect fair treatment if they request to continue in their posts;


and will Council present this Report in the form of a Green Paper to Congregation early in the Michaelmas Term?'

John Ball, Queen's

Paul Ewart, Worcester

Reply

'Council’s responses to the questions raised are as follows:

a) Under the revised Statute XII, approved by Congregation on 31 May 2016, appeals against decisions of the EJRA Committee not to approve an individual's request to remain in employment beyond the retirement age will be heard by the University Appeal Panel. This is a panel of five drawn by lot from the Pool, which comprises 24 members elected by and from Congregation.

b) One appeal that was brought on the basis that the Appeal Court should consider the lawfulness of the EJRA policy was rejected at a preliminary hearing; no appeals have been rejected following a final hearing; and two appeals have been resolved outside the University's appeal procedures.

c) The changes to the EJRA in 2015 took into account a number of factors, including Dame Janet Smith's judgment, confidential and privileged legal advice taken by the University and the experience of those who had operated the procedures. A number of changes were made. Examples of the responses specific to Dame Janet Smith's judgment include:

a. In response to Dame Janet Smith's concern that the views of departments and divisions had too much influence over the outcome of individuals' applications for employment beyond the EJRA, changes were made to the application forms and processes, such that:

i. individuals now submit their own applications, rather than departments managing the application process,

ii. departments are only asked to provide factual comment on aspects of the application and not to "support" it or otherwise,

iii. departments are asked to confirm that informal discussions have taken place and that options other than extended employment have been discussed,

iv. there is no contested case hearing when there is divergence between the views of individuals and departments;

b. The "Considerations" (the type of matters to be taken into account when deciding whether to approve an application for extended employment) were restructured and clarified eg

i. concerns that the link between the Aims and the Considerations were unclear were addressed by the inclusion of an introductory section to the Considerations (para 36 in the EJRA policy). This makes clear that applicants holding substantive academic posts are expected in most cases to vacate those posts and to self-fund their new specially-created, fixed-term post, in order that their substantive post can be refilled in support of the Aims, particularly those relating to inter-generational fairness, diversity and refreshment;

ii. references to academic distinction were removed to avoid giving the impression that decisions included an element of selection on the basis of performance assessment;

c. The need to avoid performance management was removed as an Aim of the EJRA Policy; and,

d. "Prospective applications" ie those made by departments on behalf of newly appointed staff were removed.

d) No changes have been made to the approvals process for amendments to the EJRA procedures.

The procedures have never been set down in Regulations, although they are available on the University website and have been published several times in the course of consultations over the last six years.

Personnel Committee and Council will continue to consult widely before changes are made to the EJRA policy. The new procedures that incorporate the changes approved by Congregation in May 2017 will be monitored by the Personnel Committee and the next review will take place in 2021.

For the sake of clarity, while the procedures have never been set down in Statute or Regulations, previously the coverage of the EJRA was in Statute (Statute XIV, s.15) and the age was in Regulation (Council Regulations 3 of 2004, regulation 7 (1)). As part of the changes introduced on 1 October 2017, approved by Congregation, the age at which the EJRA is set has also been included in Statute XIV.

e) Statute XII, s.57 specifies to whom the Appeal Court's decision should be supplied; there is no provision for judges to order that they be made more widely available.

Under the Regulations for Appeals to the Appeal Court (Council Regulation 5 of 2006, regulation 5.2), hearings are to be held in private unless the Appeal Court determines otherwise. A reasonable expectation that evidence and information given as part of the hearings will normally be received in confidence therefore arises from the provisions of the Statutes.

This expectation also arises out of the fact that the process is an internal, private employment matter, which would normally be dealt with confidentially. The expectation is reinforced when participants are informed that the University considers the hearing and all matters connected to it to be confidential.

The expectation of confidentiality enables those who participate and give evidence to do so freely, and protects their privacy and the privacy of anyone referred to in the course of the proceedings. 

f) The Appeal Court is created by the University Statutes and the powers it has are clearly set out. Unlike a civil court or criminal court it is not created to determine questions of lawfulness, but to act as the final internal appeal stage in respect of certain disputes within the University as specified under the Statutes. This includes inter alia consideration of whether the University's policies have been correctly applied. In relation to appeals under Part H of Statute XII, the power given to the Appeal Court is to "allow or dismiss an appeal in whole or in part". 

No power is provided in the Statutes for the Appeal Court to consider or determine broad legal issues, including the lawfulness or otherwise of University policies. The Statutes provide for Congregation, rather than an external judge, to have the power to repeal, amend or add to the Statutes and Regulations.

g) As referred to under c) above, a number of steps have been taken in response to the criticisms by Dame Janet Smith.

The judgment of Sir Mark Waller concerned procedures that are no longer in use; several matters about which he expressed concern were addressed in the procedures that have been in place since 1 October 2015.

These procedures will be further amended as a result of the recommendations of the Review Group, as supported by Congregation. For example,

  • the coverage of the EJRA will be reduced by the removal of the approximately 5,000 staff in grades 6 and 7;
  • the age of the EJRA has been changed;
  • the forms used to apply for extensions will be revised to ensure that they are suitable for the staff groups for whom they are used; and,
  • better guidance and training will be available to managers and staff.

All the comments made by the Appeal Court will be considered by those undertaking the implementation of those changes and will be available to the 2021 review group.

We conclude by commenting that Congregation has considered the EJRA repeatedly over the last 18 months and has decided on each occasion that it wishes to retain it. The Personnel Committee and various Review Groups have reviewed the policy and supporting procedures several times, in light of the growing body of case-law, expert advice, the expanding data-set on the policy's effects and experience of operating the procedures.

This is an issue that will always engender strong feelings on each side of the debate, but Congregation has decided to retain an EJRA and we are striving continually to improve the way we operate it; it is now surely time to rest the debate until the planned ten-year review in 2021.'

Supplementary questions

The following supplementary questions were submitted by Professor Ball and Professor Ewart at the meeting:

'Supplementary Question 1

Given that it is stated on the updated Personnel website that "final arrangements are subject to approval by Council on the recommendations of the Personnel Committee later in MT2017"1, will Council clarify exactly what is referred to in its reply implying that these have already been approved by Congregation:
the new procedures that incorporate the changes approved by Congregation in May 2017 will be monitored by the Personnel Committee and the next review will take place in 2021.

Supplementary Question 2

Council says that "the judgment of Sir Mark Waller concerned procedures that are no longer in use; several matters about which he expressed concern were addressed in the procedures that have been in place since 1 October 2015". But he also expressed concerns about those amended procedures and, according to the letters sent to all those affected, these procedures are to be employed in the consideration of applications made by those due to retire in 2019. Will the Council explain why it considers it fair to continue for so long with procedures it admits are only partially amended?

Supplementary Question 3

Given that the Appeal Court was expressly constituted under the North statutes to be compliant with the requirement of the Human Rights Act 1998 that it be an independent tribunal2, will the Council explain how the University Appeal Panel meets that requirement as a substitute avenue of recourse for appellants under the EJRA?

Supplementary Question 4

Given that Council has only given examples of "changes made" in response to the concerns expressed by Dame Janet Smith and has not related them specifically to passages in her now published judgement, will it provide a full list with paragraph references to the judgment?

Supplementary Question 5

Council states correctly that "the Statutes provide for Congregation, rather than an external judge, to have the power to repeal, amend or add to the Statutes and Regulations". However, given that the Council has accepted the decisions of two external judges as constituting preliminary determination of the lawfulness of the University's EJRA procedures then made changes accordingly, and given that Dame Janet Smith held "that the University cannot rely on the EJRA to show that the dismissal is automatically fair" (para 72), will the Council explain what internal avenue of recourse will now be available to an appellant who wishes to challenge the fundamental lawfulness of the procedure, given that both Dame Janet Smith and Sir Mark Waller held that the Appeal Court had jurisdiction to consider that question?

Supplementary Question 6

In its Reply the Council speaks of "Considerations" defining them as "the type of matters to be taken into account when deciding whether to approve an application for extended employment". Will Council explain how the "procedures" so far published at any stage in the EJRA comply with the requirements for the application of agreed criteria by systematic and recorded "evaluation" by panel members, as set out in Universities Funding Council ex p. The Institute of Dental Surgery [1993] EWHC Admin 5 (30 July 1993), at: that the respondent, … recognising, as the respondent does, the need for uniformity and consistency of approach, did not work by agreeing the criteria by which it would judge … so that each panel member might before and after discussion make an evaluation within an agreed range on each criterion. The form to be completed on behalf of the Division requires an evaluation of the strategic importance of the work. Will Council explain how this evaluation can be made without reference to the "academic distinction" of the applicant's work?

Supplementary Question 7

Given that the Council has not replied to the request that a full Report be presented to Congregation but has merely "commented" that "Congregation has considered the EJRA repeatedly over the last 18 months and has decided on each occasion that it wishes to retain it", will Council explain how Congregation was able to do this relying on the necessary information it needed to give informed approval, when it had not then had an opportunity to read the Appeal Court judgement of Dame Janet Smith?'

¶ These supplementary questions will be received by Council at its next meeting on 27 November. Council’s reply will be published in the Gazette.


1www.admin.ox.ac.uk/personnel/end/retirement/acrelretire8+/ejra

2www.ox.ac.uk/gazette/2000-1/supps/1_4593.pdf

Council of the University

Register of Congregation

The Vice-Chancellor reports that the following names have been added to the Register of Congregation:

Farguson, J A, Wolfson

Krause, J J, Worcester

Omar, H A H, Pembroke

Paulus, S C F, Faculty of Clinical Medicine

Rocca-Serra, P, Faculty of Engineering Science

Sansone, S A, Faculty of Engineering Science

Voysey, M, St Cross